[00:00:00] Speaker 03:
Okay, the next argued case is number 15, 1110, Venneke Kalikoagee, against the Hearts Corporation.

[00:00:15] Speaker 03:
Mr. Klinko.

[00:00:19] Speaker 00:
Thank you, Your Honor.

[00:00:20] Speaker 00:
May it please the Court.

[00:00:22] Speaker 00:
Initially, I'd like to focus on the Board's three different rationales concerning the gel content limitation.

[00:00:29] Speaker 00:
First, the board relied on the explicit teaching of at least 30% gel in the Kapitko reference.

[00:00:37] Speaker 00:
However, the specification of the Benaki patent is specific in terms of how the gel content is calculated, and it's for the entire irradiated foil.

[00:00:47] Speaker 00:
Whereas in Kapitko, there's a mixture of three components, an EPDM turpolymer that's at least 30% cross-linked,

[00:00:56] Speaker 00:
an additional ethylene or propylene component and a polymeric modifying agent.

[00:01:03] Speaker 00:
The expressed disclosure of at least 30% is only for a single component.

[00:01:08] Speaker 02:
Mike also teaches having gel content, most preferably over 30%, which would comfortably fall within your claim limitation of 15 to 65% gel content.

[00:01:21] Speaker 00:
There are major issues with the McKay reference.

[00:01:29] Speaker 00:
First of all, the explicit disclosure of the gel content in McKay was not relied upon by the examiner initially.

[00:01:38] Speaker 00:
The examiner relied upon the explicit disclosure in CAPITCO and an optimization rationale.

[00:01:48] Speaker 00:
The board

[00:01:50] Speaker 00:
went to the explicit disclosure in McCabe as a fallback position after we raised our arguments with respect to the Kapitko gel content disclosure being for a single component.

[00:02:03] Speaker 04:
But Hethfod and Schulz is nearly in anticipation, right?

[00:02:07] Speaker 04:
And it's right in the same field.

[00:02:11] Speaker 04:
And your other references for PITCO and others provide for cross-linking, roughly equivalent to gel content within the claimed range.

[00:02:22] Speaker 04:
So doesn't this look like a pretty good obviousness rejection?

[00:02:29] Speaker 00:
Well, getting back to Kapitko, the gel content, is where the single component.

[00:02:36] Speaker 00:
With McKay, McKay explicitly discloses that the preferred materials in Schultz, which are EPM and EPDM, have a list of undesirable properties, such as low green strength, high susceptibility to oil attack, and resistance to tear delastomer surface modification.

[00:02:56] Speaker 00:
McKay also, at A88, column 2, line 16 to 28, discloses that suitable interpolymers, for McKay's purpose, have a list of properties that are completely contradictory to EPM and EPDM.

[00:03:17] Speaker 02:
The teaching that's being relied upon in the K is that it's desirable to increase cross-linking in a polymer and thereby also increasing the gel content.

[00:03:31] Speaker 02:
So why wouldn't that teaching for that polymer in the K likewise apply to whatever polymer that's being disclosed in shoulders?

[00:03:42] Speaker 00:
Well, Miquet's polymers are used in foams.

[00:03:45] Speaker 00:
The word foam is in the title.

[00:03:49] Speaker 00:
It appears 74 times in the full text.

[00:03:56] Speaker 00:
claims recite a density range that excludes foams, and the present specification describes a reference dealing with foams and expressly states that the subsequently described invention-specific methods exclude foaming conditions.

[00:04:15] Speaker 00:
That's at A42, column one, lines 46 to 60.

[00:04:21] Speaker 00:
So Benaki's position is that a person having ordinary skill in the art

[00:04:25] Speaker 00:
would not combine McKay, which deals with these foam materials, with Scholes and Kapitko, which are not foams.

[00:04:37] Speaker 00:
Kapitko expressly requires a material that McKay expressly disparages, and the preferred materials in Scholes are also disparaged in McKay.

[00:04:52] Speaker 00:
and also the specific teaching regarding the irradiation cross-linking in McKay in specific two phones.

[00:05:05] Speaker 00:
In the paragraph that precedes, the paragraph that discloses the at least 30% gel content

[00:05:13] Speaker 00:
McKay incorporates by reference a book entitled Handbook of Polymer Foams and Technology, and specifically a chapter titled Polyol and Foam.

[00:05:28] Speaker 00:
as being useful for the disclosing how to conduct the radiation cross-linking.

[00:05:40] Speaker 00:
There's also a disclosure in McKay that if radiation cross-linking is used, the foamable structure is irradiated to cross-link the polymer material, which is then expanded.

[00:05:53] Speaker 00:
Every disclosure related to a radiation cross-linking is foam-specific.

[00:06:01] Speaker 00:
Since the present claims recite a density range that excludes foam, and the present specification expressly states that the invention-specific methods exclude foaming conditions

[00:06:18] Speaker 00:
position is that McKay is not analogous art, and that a person having an ordinary skill in the art at the time of invention would not have combined McKay with the Schultz or Picko.

[00:06:40] Speaker 00:
rationale put forth by the board is an optimization rationale.

[00:06:48] Speaker 00:
Basically the board said that Scholes discloses the vast majority of the limitations in the claims for the assignment regarding gel content but discloses that irradiation dose is

[00:07:07] Speaker 00:
result-effective variable.

[00:07:10] Speaker 00:
However, Scholz conducted numerous tests at different radiation dosages.

[00:07:19] Speaker 00:
He discloses a specific example.

[00:07:22] Speaker 00:
It's his best mode.

[00:07:23] Speaker 00:
It was the best that they came up with.

[00:07:26] Speaker 00:
A85, column 6, that he said was especially suitable and complied with or exceeded all of the most important specifications of German automobile manufacturers.

[00:07:41] Speaker 00:
Dr. Bolsoveda submitted a declaration and using that

[00:07:49] Speaker 00:
best-mode composition and the preferred method from Scholz, he found that it only led to a gel content of 7%.

[00:07:59] Speaker 00:
A lot of the discussion of optimization also relies on McKay, which again, we think that disclosure is specific to phones, so we don't believe

[00:08:16] Speaker 00:
that McKay is properly combinable.

[00:08:20] Speaker 03:
Explain something that wasn't clear to me.

[00:08:24] Speaker 03:
Here we have prior art that seems to surround or be right in the middle of the range that you're claiming, and we have affidavits or declarations about this or that.

[00:08:35] Speaker 03:
I didn't see any comparisons to show that this is what happens if you follow the Shoals procedure, and this is what happens

[00:08:45] Speaker 03:
If you do ours and one is unexpected from the other, there's plenty of criticisms of what's been cited as to the use of irradiation, for instance.

[00:09:00] Speaker 03:
But it was hard to find where there were results that one might call unexpected.

[00:09:10] Speaker 00:
Well, in the first Pulsaveta declaration, he conducted an experiment to produce the specific composition from Scholz, and that's in paragraph 14 of his declaration on page A253.

[00:09:32] Speaker 00:
He found that that had a gel content of only 7%.

[00:09:40] Speaker 00:
Now I said that the foil had an immaculate surface, but in paragraph 15, he said that when he tried to produce it on a larger scale, he ran into difficulties.

[00:09:57] Speaker 00:
So the scalability is important as well as the aesthetic appearance.

[00:10:08] Speaker 00:
I'd also like to point out that this was not merely a matter of discovering an optimal gel content via routine experimentation.

[00:10:18] Speaker 00:
And that's like the 12-year time period between Shoals and the present application.

[00:10:27] Speaker 00:
If it had been so obvious, someone in that intervening time period would have conducted the routine optimization.

[00:10:35] Speaker 00:
It wouldn't have taken 12 years.

[00:10:38] Speaker 00:
Also, in terms of the predictability, there's a lot of talk about how increasing the radiation dosage will necessarily lead to an increased gel content.

[00:10:53] Speaker 00:
The Sideron Declaration itself, at age 52, showed that his sample that he irradiated with the lowest dosage actually had the highest gel content.

[00:11:07] Speaker 00:
So while McKay might say that it would have been very easy for someone to achieve a desired gel content, that teaching is specific to foams.

[00:11:21] Speaker 00:
And Shoals does not deal with foams if you look at the density of the Shoals material also.

[00:11:33] Speaker 00:
We believe that the examiner and the board found that the claimed gel content range was optimal only because it's disclosed in the present specification and recited in the present claims.

[00:11:48] Speaker 00:
In our view, it was a clear case of an impermissible hindsight reconstruction.

[00:11:57] Speaker 00:
I'd like to reserve the balance of my time for the panel.

[00:12:01] Speaker 03:
Okay.

[00:12:01] Speaker 03:
Thank you, Mr. Cranko.

[00:12:05] Speaker 01:
Good morning, Your Honor, and may it please the Court.

[00:12:08] Speaker 01:
My name is Steve Grossman, and with me today is Beth Philippon, so I'm brief.

[00:12:12] Speaker 01:
I'd like to pick up where Judge Laurie made a comment that the Schultz reference was indeed anticipatory for all the features of the claims here in the underlying prosecution.

[00:12:25] Speaker 01:
The only feature of the claim that was not recited in the prior art was the gel content limitations.

[00:12:33] Speaker 01:
During the proceedings before both the examiner and the board, there was pervasive reference to the fact that Capico disclosed that it was optimal to achieve a 30% jail.

[00:12:45] Speaker 01:
The claim ranged from 15 to 65 as this court notes.

[00:12:48] Speaker 01:
The McKay reference, which was just discussed by his point.

[00:12:51] Speaker 02:
Does Kapiko really say 30% gel?

[00:12:53] Speaker 01:
Yes.

[00:12:54] Speaker 01:
Yes, Your Honor.

[00:12:55] Speaker 01:
There is a citation in Kapiko where Kapiko- I thought it was 30% cross-linking.

[00:13:00] Speaker 01:
Ah, but Your Honor, if you look at the bottom of the Kapiko reference, there is a footnote that says cross-linking equals gel content.

[00:13:08] Speaker 01:
So it's directly in there, unambiguous.

[00:13:12] Speaker 01:
It's in the reference.

[00:13:13] Speaker 01:
My colleague will find it.

[00:13:15] Speaker 01:
So, the missing feature of the claim of 15 to 65% was establishing Capico and McKay's teachings were discussed by my opponent.

[00:13:26] Speaker 01:
My opponent has indicated that McKay should not be combined because McKay with foam structure and his claim has a thickness and a density limitation.

[00:13:35] Speaker 01:
With all due respect to my opponent, this argument was not raised below, and it's also immaterial.

[00:13:40] Speaker 01:
Because in the McKay abstract, if you look at the very first sentence of the McKay abstract, McKay says that his materials are directed to elastomers, robbery materials.

[00:13:49] Speaker 01:
So it's not exclusively to phone.

[00:13:51] Speaker 01:
But more basically, the issue before the court that the court knows is whether or not the board's decision is supported by substantial evidence.

[00:14:00] Speaker 01:
The board found that Capico was properly combinable with Schultz to establish a 30% gel content.

[00:14:09] Speaker 01:
My opponents just argued, well, you cannot consider Capico because Capico's 30% gel refers to an individual component, whereas the claims do not.

[00:14:18] Speaker 01:
The claims are broad.

[00:14:20] Speaker 01:
The claims say a polyolefin comprising

[00:14:22] Speaker 01:
It doesn't say only one polymer in the polyolefin must have this gel content.

[00:14:28] Speaker 01:
That argument, I think, can be dismissed out of hand.

[00:14:31] Speaker 01:
Whether or not there's substantial evidence, I direct the court to finding the fact that the board went through an exhaustive consideration of the prior art with Schulz.

[00:14:43] Speaker 01:
Then the board turned to McKay.

[00:14:45] Speaker 01:
With respect to McKay, I don't remember what the question was, but McKay itself literally said that those with skill in the art

[00:14:54] Speaker 01:
will be able to regulate and change things like radiation intensity, the type of polymer.

[00:15:03] Speaker 01:
It went into this exhaustive teaching to provide a motivation for the board to properly combine McKay with Capico and Schultz to find that the missing limitation was present in the prior art.

[00:15:16] Speaker 01:
Your Honor asked the question, Judge Newman, you asked the question as to whether or not there was anything in the prior art that established if following Schultz would give the gel content or vice versa.

[00:15:27] Speaker 01:
We submitted an affidavit of Dr. Cideron.

[00:15:31] Speaker 01:
Dr. Cideron followed the teachings of Schultz.

[00:15:34] Speaker 01:
Dr. Cideron established that by following the teachings of Schultz, the gel content limitation between 15 to 65% was obtainable.

[00:15:44] Speaker 01:
We submitted the Siderom Declaration in support of a 102 Inherency Rejection.

[00:15:49] Speaker 01:
Ultimately, the board found that Dr. Siderom had made too many selections from the general teachings, and it wasn't necessarily present.

[00:16:00] Speaker 01:
But no doubt, Dr. Siderom's, using the template of Schulz, was able to readily establish a gel content of 15 to 65%.

[00:16:10] Speaker 01:
Again, the board did not accept that on the 102 basis, but did find, and it's in the record, that Dr. Sitaram's experiments were certainly evidence of optimization.

[00:16:21] Speaker 01:
With regards to ultimately finding obviousness here, the board also found that because of McKay's instructions and because of Capico's informing as well, and there's one other reference, which was the reference of Dean, which was an academic reference, which established that cross-linking gives jail.

[00:16:40] Speaker 01:
In fact, that goes to Judge Chen's comments.

[00:16:43] Speaker 01:
It's in Copico.

[00:16:46] Speaker 01:
It's on A192 at the bottom.

[00:16:48] Speaker 01:
It says gel content equals degree of cross-linking.

[00:16:51] Speaker 01:
Even if you put Copico aside, we have the Dean in reference, which was not referenced by my opponent, where Dean in an academic reference established that cross-linking gave gel.

[00:17:02] Speaker 01:
The only missing feature in this entire debate here was that the original claim

[00:17:09] Speaker 01:
had all the features of the prior art except gel content, and the PTAB found overwhelming evidence that McKay, Capico, and Deenan would instruct one of skill in the art how to achieve that gel content readily.

[00:17:23] Speaker 03:
How do you know whether to put McKay together with Gels, for instance, to give you a gel content in this range, unless you see what this applicant has done and reconstruct with perfect hindsight?

[00:17:38] Speaker 01:
in the

[00:17:40] Speaker 01:
In the board's decision, McKay ... First of all, the court's standard for combination is whether there is a reasonable expectation of success in using the teachings of the art to modify a given reference.

[00:17:53] Speaker 01:
McKay itself has a direct paragraph that I believe directly answers your honor's question.

[00:18:00] Speaker 01:
McKay says, quote, that those with skill in the art will be readily able to adjust variables such as radiation,

[00:18:08] Speaker 01:
thickness, molecular weight, and type of polymer to achieve the gel content.

[00:18:15] Speaker 03:
If you know that that's what you're working for, and if you have to put six or seven references together in order to get there as well for the subordinate claims, that doesn't really

[00:18:28] Speaker 03:
give you a very strong case for obvious.

[00:18:31] Speaker 01:
Your Honor, this is not a case of six or seven references.

[00:18:33] Speaker 01:
This is a case of the only missing feature of the claim was the jail content.

[00:18:39] Speaker 01:
The board looked into McKay and said, in terms of getting a desirable jail content, if that's the problem,

[00:18:47] Speaker 01:
that we're trying to solve here, McKay instructs, finding the fact nine of the board, that that is readily obtainable by those with fill-in-the-art.

[00:18:57] Speaker 01:
We actually have two references here, the primary reference and one reference of McKay.

[00:19:02] Speaker 01:
You don't have to go to six or seven.

[00:19:03] Speaker 03:
That's the broadest claim, or the first claim.

[00:19:06] Speaker 01:
Yes.

[00:19:06] Speaker 03:
By the time you get to the subordinate claims, do you have six or seven, five or six?

[00:19:12] Speaker 01:
Your Honor, I have two comments on that.

[00:19:16] Speaker 01:
The subordinate claims were never argued for patentability below.

[00:19:19] Speaker 01:
There was no features of the dependent claims here that were separately argued as establishing patentable subject matter.

[00:19:25] Speaker 01:
The entire arguments below in the record were focused on whether or not one of ordinary skill in the art would be able to achieve a jailed content.

[00:19:33] Speaker 01:
In fact, Your Honor, I'll take it one step further.

[00:19:36] Speaker 01:
Schultz established that you radiate to cross-link.

[00:19:39] Speaker 01:
This is only a case of whether or not one can quantify cross-linking.

[00:19:44] Speaker 01:
The prior art, the admitted prior art, that you radiate to cross-link to improve strengthening is even cited in the background of my opponent's patent under appeal here.

[00:19:54] Speaker 01:
What about commercial success?

[00:19:56] Speaker 01:
With regards to commercial success, I believe substantial evidence supports the board's finding that there was no nexus, Your Honor.

[00:20:03] Speaker 01:
The affidavits submitted by my opponent were shown to establish that the films that were considered all had a lacrosse.

[00:20:12] Speaker 01:
They had a lacquer and they were shiny.

[00:20:15] Speaker 01:
The evidence submitted to the board was pervasive on that.

[00:20:19] Speaker 01:
My opponent had the opportunity to cure that and never did.

[00:20:21] Speaker 01:
He argued that the lacquering was irrelevant.

[00:20:24] Speaker 01:
The board's decision on this issue is entitled to review under substantial evidence.

[00:20:29] Speaker 01:
I believe there was clearly substantial evidence for the board to find that no nexus had been established between the commercial success.

[00:20:36] Speaker 01:
and the claimant issue.

[00:20:39] Speaker 01:
I would also add, and perhaps my opponent argued at the end of his brief, his primary brief, that our challenge, once I pointed this out, that our challenge on the ground of commercial, our challenge as a patent, excuse me, was an implicit admission of the commercial success of this invention.

[00:20:59] Speaker 01:
That was argued in his brief in his last paragraph.

[00:21:01] Speaker 01:
My point on that to the Steve panel is that that is totally inconsistent with statutory construction.

[00:21:09] Speaker 01:
Our right to bring an action at the Patent Office to challenge patentability

[00:21:13] Speaker 01:
should never be construed as an implicit admission on our part of commercial success.

[00:21:19] Speaker 01:
The second point I would add to that on your question is that with regards to commercial success, there is no evidence that we sell a product that infringes or has had any commercial success.

[00:21:31] Speaker 01:
There is no evidence whatsoever of nexus.

[00:21:33] Speaker 01:
To answer your question, I believe substantial evidence supports the board's decision.

[00:21:39] Speaker 01:
I believe

[00:21:41] Speaker 01:
that in this case, we are talking about a broad claim that was never amended, even though my colleague had the opportunity to do so.

[00:21:49] Speaker 01:
The arguments were on gel content, and McKay, Capico, and the academic reference of Dean clearly established that one of ordinary skill in the art would readily be able to cross link to a desired gel point, and the numerical feature of 15 to 65% was recited in Capico, it was recited in McKay.

[00:22:09] Speaker 01:
So that number was readily achievable and I believe the board's decision is completely supported by substantial evidence.

[00:22:17] Speaker 01:
Unless there's any other questions of this panel, I have nothing further to add.

[00:22:29] Speaker 00:
I'd just like to address a couple of the points raised by Hartz.

[00:22:34] Speaker 00:
First, whether the foam versus non-foam issue was argued below.

[00:22:39] Speaker 00:
We've argued consistently that the McKay reference teaches away.

[00:22:44] Speaker 00:
Additionally, Hartz raised the issue of analogous art in their own brief.

[00:22:51] Speaker 00:
So we're entitled to make that argument.

[00:22:57] Speaker 00:
Back to optimizing Schultz by merely playing with the radiation density.

[00:23:07] Speaker 00:
Dr. Holseveda conducted additional experiments.

[00:23:12] Speaker 00:
This is in the record in his second declaration at 864 paragraph 7.

[00:23:22] Speaker 00:
He took a polymer within the definition of Schultz, used Schultz's disclosed radiation amount, and only came up with a density range of from zero to six percent gel.

[00:23:47] Speaker 00:
Regarding the syndrome declaration, this was argued about quite a bit below, and there are significant problems with the syndrome declaration.

[00:23:56] Speaker 00:
First, we have no idea how many experiments he actually conducted.

[00:24:00] Speaker 00:
Second, he admits knowledge of the Benequiv patent.

[00:24:07] Speaker 00:
And third, although Hartz referred to syndrome on obviousness grounds, in their decision on rehearing, the board made explicitly clear that syndrome was not being relied upon for the obviousness grounds.

[00:24:24] Speaker 00:
Regarding Hartz's arguments concerning the reasonable expectation of success, I come back to the foam versus non-foam, and a person having ordinary skill in the art would not have even looked to McKay's foam compositions in order to modify Scholz's non-foam compositions, which have much higher density, especially when McKay teaches that

[00:24:51] Speaker 00:
EPM and EPDM, the preferred materials in Schultz have numerous negative properties that are unsuitable for McKay's own inner pocket.

[00:25:02] Speaker 00:
A person having an ordinary skill in the arts simply would never have looked to McKay in order to modify Schultz and would never have combined McKay with Kapitko.

[00:25:14] Speaker 00:
Hertz also mentioned that McKay's disclosure of all these variables and said that if there was a certain desired gel content, a person having an ordinary skill in the art would be able to achieve by manipulating all these variables.

[00:25:32] Speaker 00:
Well, first you have to have the desired gel content.

[00:25:36] Speaker 00:
And the only place that desired jail content is in the present claims.

[00:25:42] Speaker 00:
Because in Capetco, it's only disclosed from one component of multi-component mixture.

[00:25:48] Speaker 00:
And in McKay, it's only disclosed for phones.

[00:25:55] Speaker 00:
I see that my time is up.

[00:25:56] Speaker 00:
I don't have any further questions.

[00:25:58] Speaker 03:
Thank you.

[00:25:59] Speaker 03:
Thank you both.

[00:26:00] Speaker 03:
The case is taken under submission.

[00:26:02] Speaker 03:
This completes the argued cases for this session.